DOJ says cross on California war memorial should stay

FILE: Jan. 4, 2011: Rev. John Fredericksen of Orlando, Fla., takes a picture in front of the war memorial cross on Mount Soledad in San Diego, alongside Burdette Streeter of San Diego. (AP)

The Justice Department says a 29-foot war memorial cross on a San Diego mountain is not an unconstitutional promotion of Christianity and should remain on federal property.

The Obama administration said an appeals court ruling declaring the cross on Mount Soledad a violation of the constitutional separation of church and state undermined an act of Congress and conflicted with recent Supreme Court decisions.

But, in a filing Monday to the nation's highest court, it said an appeal should first be considered by the 9th U.S. Circuit Court of Appeals because there is no imminent risk that the cross is removed. Last month, the Mt. Soledad Memorial Association asked to skip the appeals court and go straight to the U.S. Supreme Court, saying it wanted to hasten resolution to a legal dispute that began in 1989.

The brief by Solicitor General Donald B. Verrilli Jr. said "additional time for reflection" may cause the 9th Circuit to reconsider its position. It says the Justice Department will appeal to the Supreme Court if it loses.

The 9th Circuit has been an unfriendly venue to advocates of the cross, ruling in 2011 that it was unconstitutional because it sits on federal property and sending the case back to U.S. District Judge Larry Burns to consider alternatives. In December, Burns reluctantly ordered that the cross be removed but said his order would be put on hold pending appeals.

"So long as the stay remains in place, this case can proceed along the usual procedural course without causing immediate harm to the public interest," the Justice Department wrote in its brief.

Verrilli added that the 9th Circuit’s earlier ruling was "wrong" and needs to be overturned, either by the appeals court or by the Supreme Court, according to The Los Angeles Times.

“The United States remains fully committed to preserving the Mount Soledad cross as an appropriate memorial to our nation’s veterans,” he wrote.

The concrete cross was erected in 1954 to the memory of veterans of World War I, World War II and the Korean War. The federal government seized the property from the city of San Diego in 2006 through an act of Congress in an effort to prevent it from being removed.

James McElroy, an attorney for plaintiffs who have challenged the cross, said the Justice Department made the right call by refusing to join the war memorial association's call for an immediate appeal to the Supreme Court.

"This is not a case where the cross is going to be ripped out of the ground anytime soon," McElroy said. "There's no reason to not go the normal course."

The Liberty Institute, a nonprofit legal group specializing in religious liberty cases, says the Supreme Court petition has received support from 19 states, the American Legion, prominent veterans and members of Congress.

"We are encouraged by the outpouring of support that the Mt. Soledad Memorial Association has received for its petition to have the U.S. Supreme Court settle, once and for all, the constitutionality of the Mt. Soledad Veterans Memorial Cross," said Kelly Shackelford, president and CEO of the Liberty Institute.